WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090072
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: October 20, 2009
ATTENDEES: Worker, Worker Representative
ISSUES
The worker is objecting to the Adjudicator’s letters dated November 20, 2008 and December 4, 2008 which reduced the worker’s permanent disability (PD) award from 15% to 3% based on the presence of a significant pre-existing condition and denied the payment of interest on the PD award.
HOW THE ISSUES ARISE
On August 24, 1989, the worker fell down a flight of stairs injuring his left knee. Although the worker received temporary total benefits for approximately two years, it was not until late 2008 that he was assessed, via a paper review performed by the Workplace Safety and Insurance (WSIB) Associate Medical Director, for a PD award. His total left knee was rated at a 15% level; however, four fifths (4/5th) of the left knee disability was considered to be related to an underlying, or pre-existing, condition. Thus, his PD award was reduced to 3%.
In addition, since the PD award with full arrears was granted at the operating area level, the worker was not granted an interest payment when the PD award was processed.
The worker has objected to the reduction of the NEL percentage stating he should be entitled to the full 15% award. In addition, since it was an administration error by the Workplace Safety and Insurance Board (WSIB) not to have granted a PD assessment previously, along with the operating area having been directed by a prior Appeals Resolution Officer (ARO) to reconsider its prior decision not to grant an award, which eventually resulted in the PD award being granted, the worker contends interest should be paid.
AUTHORITY
As per the WSIB Operational Policy Manual (OPM)
14-05-03 Second Injury and Enhancement Fund (SIEF)
11-01-05 Determining Maximum Medical Recovery (MMR)
18-07-01 Determining the Degree of Disability
18-07-02 The Ontario Rating Schedule
18-06-03 Definitions for Adjudicating Pre-1998 Claims
18-01-08 Interest Payments
ASSESSMENT OF THE EVIDENCE
On August 24, 1989, the worker tripped and fell down a flight of stairs resulting in an injury to his left knee. The worker indicated he had been mopping some steps and while walking backwards down the steps, he slipped and fell backwards. He had previously indicated to a WSIB field investigator that the mop handle became entangled in his legs as he fell, resulting in a twisting motion to his left knee. He required immediate medical attention and was authorized off work.
Although there was some concern at one point by the operating area whether temporary total (TT) benefits had been incorrectly paid, it was subsequently determined the worker was entitled to TT benefits until October 31, 1991.
A major difficulty arose with the worker’s claim concerning the areas of entitlement allowable due to the accident. The WSIB accepted the worker experienced a lateral meniscal tear to his left knee due to the August 1989 work incident; however, it was considered the worker had an extensive prior history of left knee problems which were not the result of the accident.
In memo 61 of the claim record file, a detailed history of the worker’s prior treatment for his left knee was provided and will not be repeated at this time. However, a brief synopsis is as follows:
- On Dec. 7, 1983, Dr. Ansari noted a possible tear in the posterior medial part of the medical meniscus. An arthroscopy procedure was recommended.
- On Jan. 11, 1984, the arthroscopy procedure showed a tear in the posterior horn (flap tear). A partial medial meniscectomy was performed as the anterior cruciate had a significant amount of synovitis and the cruciate had been torn completely. The lateral meniscus was considered to be normal.
- The family physician provided a report in January 1990, which noted the worker had sustained further left knee problems requiring medical attention on October 6, 1987, February 17, 1988 and April 8, 1988. This third episode resulted in the need for a referral to a specialist.
- On April 19, 1988, the specialist, Dr. Abou-Keer, recommended another arthroscopic procedure due to continuing complaints by the worker; however, the worker requested a second opinion.
- In a June 21, 1988 report, Dr. Offierski confirmed there was instability in the left knee that was progressively becoming worse. The specialist noted there was a chronic anterior cruciate ligament insufficiency of the knee and the presence of arthritis was evident. A ligament reconstruction would be considered if physiotherapy was not beneficial.
- On August 25, 1988, Dr. Offierski noted the knee had been strengthened by physiotherapy, although he considered it to still be unstable. An option of surgery or bracing was provided with the worker deciding on using a brace to see if improvement could be obtained via the non-surgical method.
The worker testified he remembered injuring his left knee while playing sports in early 1980 while in British Columbia, but he did not seek medical attention for several years. By 1983, he noted there was difficulty in playing sports; thus, he sought medical attention for the problem.
Prior to the 1989 work accident, the worker was not prepared to undergo surgery as he hoped the use of a brace would allow him to participate in physical activities. He testified he was not in sufficient discomfort to warrant surgery; however, this changed after the fall down the stairs.
Two months after the work accident in October 1989, Dr. Offierski noted there was medial compartment arthritis in the left knee and the only option for the worker was surgery. On January 17, 1990, the worker underwent a surgical procedure involving arthroscopy, partial medial meniscectomy and anterior cruciate ligament reconstruction. The actual medical surgical report stated,
"Using a combination of suction punches the free margin of the lateral meniscus was trimmed back to a smooth edge. Approximately 2/3s of the mid-portion of the lateral meniscus was resected. The posterior horn of the lateral meniscus was trimmed back to a smooth edge."
The worker testified this procedure did not offer the relief he had hoped and he continued to have further problems with the left knee. During this time, the WSIB considered the lateral meniscal tear to be work-related due to the twisting the knee experienced during the fall; however, the anterior cruciate ligament instability and osteoarthritis were pre-existing. A subsequent surgery occurred on November 21, 1990 involving arthroscopy and debridement of scar tissue. A third surgery on July 15, 1991 occurred and demonstrated there was a cartilage ulcer with some sheer tearing of the cartilage surface over the medial femoral condyle.
As previously stated, the WSIB questioned whether the second and third surgeries were related to the 1989 accident; however, the WSIB eventually accepted the lost time incurred would remain covered by the WSIB until October 31, 1991.
The worker returned to work in a janitorial capacity with the accident employer and has remained with the employer in this capacity since his return. There was a new incident which occurred on February 9, 1999 when the worker stepped backward into a hole and twisted his left knee. The claim was allowed on an aggravation basis and the payment of loss of earnings (LOE) benefits was granted to April 12, 1999 when the worker returned to work. It was determined the aggravation to the left knee had resolved. A further recurrence in 2001 was denied as it was determined the symptoms at that time were related to advancing osteoarthritis and not from either of his work accidents. A surgical procedure in February 2003 was denied as it was also considered to be related to the pre-existing condition.
During an Appeals Resolution Officer review in 2006, the ARO had concerns as to whether the worker had been left with a permanent disability/impairment from either of his accidents and returned the claim record file to the operating area for further enquiries. No formal decision was rendered by the ARO with regards to the issue.
Upon further investigation and review, the operating area determined the worker had been left with a permanent disability for the torn left medial meniscus due to the 1989 work accident; however, there was a concern that any actual PD examination would include the injuries sustained prior to the work accident and would include the limitations from the second and third surgeries. Thus, only a paper review of the medical documentation occurred.
In memo 65 of the claim record file, the WSIB Associate Medical Director commented,
"Level of disability for the left knee would be rated at 15%, for both the compensable and non-compensable knee impairments. Given the fact that the award is to be limited to the lateral meniscus tear only, this would represent approximately 1/5th of the total knee disability. As such, the PD award for the lateral meniscus tear should be reduced to 3%."
In addition, when the PD award was processed, it was considered the granting of the award had occurred at the operating area level; therefore, as per the WSIB policy regarding the payment of interest, there would be no interest payment when the award was processed.
The worker’s representative presented the following arguments during the hearing:
- The worker denied any significant on-going complaints in the left knee since 1980 prior to the 1989 accident; therefore, the left knee should be considered to be asymptomatic at the time of the accident.
- There was no formal assessment regarding the quantum of pre-existing condition taken prior to 1989; therefore, the determination that it represented 80% of the total present disability is not confirmed with medical documentation.
- The WSIB accepted both subsequent surgeries at the time and therefore they should be considered compensable and covered in the PD award.
- The accident history described by the worker was a significant one, yet the WSIB decision-makers keep incorrectly referring to it as "minor".
- The granting of the PD award was based on the direction of the ARO to the operating area for it to review the issue in dispute; therefore, the payment of interest is warranted since the operating area would not have reviewed the situation without this direction. In addition, since the permanent disability was evident from 1991, the worker should not be penalized because the WSIB did not rate him at the time.
ANALYSIS:
In order to reach a determination with regards to the issues in dispute, it is necessary to review the entitlement in the worker’s claim. Although the worker’s representative stressed the lack of continuity from the 1980 non-work-related sports injury as a reason to emphasize the impact of the 1989 work-accident, the fact there was no need for medical attention in 1980 and for several years thereafter does not negate the existence of a significant pre-existing condition. There is sufficient evidence to support a finding the worker was having considerable left knee problems in 1988. They may, or may not, have been related to an incident eight years previously, but they did exist.
Even if the worker considered his knee to be asymptomatic because he was able to continue working without noticeable signs being evident to co-workers, he needed to seek the advice of specialists with regards to the limitations his disability was causing him. In 1988, the opinion of two orthopaedic specialists was that surgery was an option that needed consideration; thus, it cannot be concluded the worker was asymptomatic at the time. The family physician’s report of three separate incidents in 1987 and 1988 prior to the work incident indicates there was significant instability in the left knee at the time of the 1989 work accident.
Therefore, I conclude there was a significant pre-existing condition present. I also accept the medical opinion of the WSIB Associate Medical Director that surgery would have eventually been required on the left knee for the pre-existing problems. It was only the work incident that resulted in the surgery being performed for the pre-existing conditions in the left knee quicker than the worker wished since surgery for the meniscal tear was necessary anyways. It is evident that the surgeries performed were for both the work-related meniscal tear and for the underlying conditions. Thus, the residual disability which remained solely due to the meniscal tear disability warrants a PD assessment.
As per OPM Document 18-07-02, "The Ontario Rating Schedule", the method used by the WSIB in determining the appropriate quantum for a disability is outlined:
"The WSIB has adopted the Ontario Rating Schedule (O.R.S.) as a clinical guide to evaluation, for consistency of medical assessment under the provisions of Sections 45(1), 45(3) and 13. The Ontario Rating Schedule is used only as a guide for minimum rating levels for specified disabilities. It shows, in percentage, the approximate impairment of earnings capacity in an average unskilled worker. In every case, emphasis is placed on the individual factors being appraised and appropriate allowances are made."
In addition, it is important to note that the severity of the pain a worker experiences on movement is not captured in the Ontario Rating Schedule to the extent a worker expects. The actual rating schedule does not provide a value given for pain, but only with regards to the physical restrictions of movement and its impact on the worker’s ability to perform work the average person would be expected to perform. Basically, a PD benefit is not rated on the basis of pain and suffering. Nor is the benefit based on non-measurable information, such as the inability to play certain sports or a loss of ability to do certain activities.
Upon reviewing the Ontario Rating Schedule for the immobility of the knee joint, the maximum PD award allowable is 25%.
In addition, as per WSIB policy 14-05-03, a worker’s PD award may be reduced if the pre-existing condition is measurable. The worker’s representative not only questioned the methodology used in determining that 80% of the worker’s measurable condition at present is due to the underlying condition, but also that it is impossible to measure the pre-existing condition with the information in the claim record file. However, as previously concluded within this decision, I have accepted there was a significant pre-existing condition which must be taken into consideration when considering the worker’s PD award.
Even though the expert medical opinion of the WSIB Associate Medical Director placed the pre-existing condition at 4/5th of the overall disability, I have a concern that this fraction would also have applied even if the worker had been granted a 25% award for a totally disabled knee (which may occur in the future, if further surgery on the pre-existing condition is required); thus, one fifth of the maximum 25% level would have resulted in the worker receiving a 5% award, instead of the 3% which was granted.
In addition, it is also possible to accurately rate the usual PD award given for a routine surgical procedure for a torn meniscal tear being performed, if there had been no pre-existing condition. It has been my experience that a 5% PD award is routinely granted for this type of disability during a PD assessment had an actual PD examination occurred.
Therefore, I consider that the actual permanent disability which resulted from the 1989 work accident would be best classified as a 5% disability; thus, the worker is entitled to a 5% PD award for the torn left meniscus.
With regards to the issue of the payment of interest, WSIB OPM Document 18-01-08 would apply. Since the worker’s accident date was in August 1989, the section pertaining to interest payments registered before January 1, 1990 would apply. The policy specifically states for these workers that interest is only payable "if the delayed benefit payment is the result of an Appeals Resolution Officer (ARO) or the Workplace Safety and Insurance Appeals Tribunal (WSIAT) overturning a decision and now granting entitlement to compensation benefits." (Emphasis added).
With regards to the payment of interest on the 3% award previously granted by the operating area, the previous ARO never overturned the decision referred to him in 2006 by issuing a formal decision, but only returned it to the operating area for further enquiries. Thus, he did not overturn a decision and grant benefits as required by the WSIB policy. Therefore, the granting of the 3% PD does not meet the criteria required within the WSIB interest policy to pay interest.
The worker’s request for an interest payment on the 3% PD award previously granted by the operating area is denied.
However, my decision to grant an additional 2% towards the PD award would constitute an overturn of the previously determined 3% PD by granting additional compensation benefits not previously awarded. Thus, there is now entitlement to an additional 2% PD award for which there previously was no entitlement and a formal ARO decision has now been rendered. Therefore, for this additional 2% PD award, the worker is entitled to the payment of interest on this increased portion. The interest is to be calculated as prescribed in the interest policy.
In summary, I find the worker is entitled to a 5% PD award for the torn left meniscus. The additional 2% award would qualify for a calculation of interest as per WSIB policy.
The worker’s request for the entire 15% PD is denied, as is his request for an interest payment on the 3% PD previously granted.
I make no determination as to whether the 5% PD is payable as a lump sum.
CONCLUSION
I conclude the following:
- The worker is not entitled to interest on the 3% PD award.
- The 3% PD award is to be increased to 5% with full arrears.
- The worker is entitled to the payment of interest on the additional 2% award granted.
The worker’s objection is allowed in part.
DATED October 27, 2009
N. Norvack Appeals Resolution Officer Appeals Branch